United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge
matter comes before the court on two pending motions:
(1) Defendants Sergeant Smith, CO Brummond, Captain Yates,
Captain Martinez, CO Nevins, CO Forestall, Sergeant Corbin,
Mental Health Provider Toews, Major Butcher, Lieutenant
Grimes, and CO Lopez's (collectively,
“Defendants”) Motion for Partial Dismissal of Amended
Complaint (Doc # 6) (“Partial Motion to Dismiss”)
[#24, filed May 1, 2017]; and
(2) Defendant CO Lopez's Combined Motion to Join CDOC
Defendants' Motion for Partial Dismissal of Amended
Complaint (Doc #24) and Motion to Dismiss Eight Amendment
Claim (the “Lopez Motion to Dismiss”) [#40, filed
June 21, 2017].
undersigned considers the motions pursuant to 28 U.S.C.
§ 636(b), the Order Referring Case dated March 1, 2017
[#10], and the memoranda dated May 8, 2017 [#25] and June 21,
2017 [#42]. This court concludes that oral argument will not
materially assist in the resolution of these motions.
Accordingly, upon careful review of the motions and
associated briefing, the entire case file, and the applicable
law, I respectfully RECOMMEND that the Partial Motion to
Dismiss be GRANTED and the Lopez Motion to Dismiss be
David Luck (“Plaintiff” or “Mr.
Luck”) is currently incarcerated at the Limon
Correctional Facility (“LCF”). [#1 at 2].
Plaintiff alleges that Defendants violated his First, Fourth,
Eighth, and Fourteenth Amendment rights by placing him in
Unit-2, a unit allegedly hostile towards member of the LBGTQ
community, which led to an inmate assaulting Plaintiff for
being homosexual. [#6]. Plaintiff alleges that he informed
Defendants that his placement in Unit-2 posed serious risks
to his safety, because Unit-2 housed many white supremacists
that would assault him because of his sexual orientation.
See [id. at ¶¶ 1, 3, 5-7, 13-14].
Despite his warnings, Defendants moved Plaintiff to Unit-2,
and assigned him to a cell with an associate of white
supremacists. [Id. at ¶¶ 6-7].
continues that he informed Defendants Butcher and Yates that
“on returning from recreation I had been approached by
an inmate who told me that If [sic] I didn't leave Unit-2
that I would be smashed out ([i.e., ] hurt very
badly).” [Id. at ¶¶ 13-14]. Against
protocol, Plaintiff was placed in an empty double-cell
because he was a member of the LBGTQ community.
[Id.]. Then, on or about November 29, 2016, one day
after his transfer to Unit-2, an inmate entered Mr.
Luck's cell and assaulted him. [Id. at ¶
15]. Plaintiff alleges that he suffered black eyes, bruises,
welts, and a bloody nose because of the assault, and that he
now suffers from severe migraines, “random gushing nose
bleeds”, aches and pains in his neck, as well as mental
and emotional disorders. [Id. at ¶¶
the assault, Plaintiff was transferred to the Restrictive
Housing Unit where he stayed for one-day, pending an
investigation into the assault. [Id. at ¶ 15].
Plaintiff was then placed back in general population
(Unit-3). [Id.]. Plaintiff alleges that, upon moving
to Unit-3, he was again assigned to a cell with a white
supremacist. [Id. at ¶ 15].
about December 22, 2016, Mr. Luck filed an informal grievance
against Defendants, because his “constitutional rights
have violated [sic] by malicious intent, and [his] life
continues to be placed in danger by the policy breakers who
continue to retaliate against me for exercising my rights to
liberty without affording me any due process.”
[Id.]. Plaintiff then filed a step-one grievance
based on his continued placement with white supremacists and
“affiliated members of multiple security threat
groups” in violation of his Eighth Amendment rights.
[Id.]. Defendant Yates denied the informal
grievance, because Mr. Luck had not brought “ant [sic]
custody issues to the attention of the staff while being
assigned to living unit-3.” [Id. at ¶
then initiated this action by filing his pro
se prisoner complaint on January 19, 2017.
[#1]. Pursuant to the Order of the Honorable Gordon P.
Gallagher, Plaintiff filed his Amended Complaint on January
20, 2017, the operative complaint in this matter.
See [#5; #6].
filed the Partial Motion to Dismiss and a Partial Answer on
May 1, 2017. See [#23; #24]. Plaintiff filed his
Response to the Partial Motion to Dismiss as well as a
Response to Defendants' Partial Answer on June 7, 2017.
See [#36; #37]. On June 21, 2017, Defendants filed
the Lopez Motion to Dismiss. [#40]. Defendants also filed a
Reply to the Partial Motion to Dismiss on July 27, 2017.
the June 9, 2017 Status Conference, Plaintiff indicated that
he wished to amend and/or clarify his complaint a second
time. At the Conference, Defendants acknowledged that their
pending motions to dismiss would likely be mooted by a Second
counsel for Defendants indicated that they had no objection
to further amendment, consistent with the additional
allegations reflected in Mr. Luck's Response to the
collective Defendants' Partial Motion to Dismiss [#37],
so long as they retained the right to answer or otherwise
respond to a Second Amended Complaint. Thus, this court
directed Plaintiff to file a Second Amended Complaint,
incorporating all potential claims against Defendants, on or
before June 30, 2017. See [#38]. Plaintiff then
sought, and received, two extensions of time to file his
Second Amended Complaint, which was due on or before August
21, 2017. See [#45; #47; #50; #52]. Plaintiff has
not filed his Second Amended Complaint, and has not responded
to the Lopez Motion to Dismiss. Given the amount of time that
has been afforded to Plaintiff to comply with the court's
prior order, this court concludes that a Second Amended
Complaint is not forthcoming in a timely fashion, and it is
appropriate to move forward with a Recommendation on the
pending motions at this time, even without a response from
Plaintiff with respect to the Lopez Motion to Dismiss.
See D.C.COLO.LCivR 7.1(d).
Rule 12(b)(6) a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion
under Rule 12(b)(6), the court must “accept as true all
well-pleaded factual allegations . . . and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A
plaintiff may not rely on mere labels or conclusions,
“and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also
Hall, 935 F.2d at 1110 (holding that even pro
se litigants cannot rely on conclusory, unsubstantiated
allegations to survive a 12(b)(6) motion). Rather, “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009); see also Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (explaining that plausibility refers
“to the scope of the allegations in a complaint,
” and that the allegations must be sufficient to nudge
a plaintiff's claim(s) “across ...